Friday, April 6, 2012

New Hampshire considers "early offer" program in medical malpractice cases

The TortsProf blog is reporting that the New Hampshire Senate has adopted an early offer approach to medical malpractice that would allow a patient to initiate the early offer process.

According to an article in the Union Leader,Senate Bill 406 establishes an “early offer” program in which a medical provider would have to offer a settlement to an aggrieved patient within 90 days. The settlement would be based on medical costs and lost wages, while limiting pain-and-suffering damages, from $1,700 for minor harm to $117,500 for grave harm. Participation in the program would be voluntary for patients.

The fact that the program is voluntary is a good thing, but given the incredibly low caps on damages it would seem its utility would be very limited.

Aside from that, as with all early offer programs, another main problem is that the program is basically unfair to the plaintiffs in one basic respect. For the defendant to be able to make a reasonable offer, the plaintiff has to provide the defendant with all the available information before the defendant has to offer any in return. In other words, the system is flawed in that it depends on the plaintiff disclosing all its evidence before getting the benefit of doing discovery. It is this one sided discovery function that have resulted in similar proposals to be abandoned in other jurisdictions in the past.

Of course, as you would expect, the rhetoric is always the same and the attack on the plaintiffs' bar is vicious. Take a look at the comments under the Union Leader article for example. Unfortunately, many of those comments are misinformed as I have documented many times over the last two years here.